1. Accused Hiralal Ramlal was prosecuted before the Sub-Divisional Magistrate, Sitamau for a charge under Section 409, Penal Code and was acquitted on 25.9.50. During the Police investigation the petitioner who is the father of the accused Hiralal had handed over a sum of Rs. 701-2-9 to the Police Officer in charge of the investigation on 5.12.1948. This sum, it appears, immediately after the receipt of the same from the petitioner Ramlal was handed over by the Police to the Municipality Sitamau in which the accused was serving and in respect of which the offence is alleged to have been committed without any specific order of the Court to that effect. On reference to the Panchanama Ex. P/3 with regard to the seizure of this sum it appears that this sum was seized, or attached by the Police during the course of investigation.
In various columns in the forms printed for the purpose of use of Sitamau Police it was mentioned that this sum of Rs. 701-2-9 was being seized in connection with the criminal breach of trust in respect of the funds of the Municipal Committee by Sub-Inspector Suryamal from the custody of the petitioner Ramlal. After the accused was acquitted the petitioner submitted an application to the Sub-Divisional Magistrate Sitamau for the refund of this sum seized from his custody by the Police. The application purported to be made under Section 517, Criminal P.C. This application was rejected by the Magistrate on the ground that the sum was not produced before the Court during the inquiry 'or trial and therefore he had no jurisdiction to pass any order in respect of the same. The petitioner thereupon submitted an application for revision to the Sessions Judge Mandsaur who has made this reference.
2. The grounds set forth by the learned Judge for setting aside the order of the learned Magistrate are that under Section 523, Criminal P.C. the Magistrate had jurisdiction to pass order in respect of the property seized by the Police though not produced before it. Reliance for this purpose is taken on the decision reported in - Mahomed Yusuf v. Krishna Mohan AIR 1938 Cal 17 (A).
3. Before me counsel both for the petitioner as well as for the Municipality appeared. Mr. Pande who appeared for the petitioner suggested that the order for directing the delivery of the property from the Municipality to the petitioner could be passed under Section 523, Cr.P.C. by the joint operation of powers under Section 523 and the inherent powers of the Court. While it was contended by the counsel for the Municipality that no order can be passed under Section 523, Cr.P.C. as the only order contemplated under Section 523 is one in respect of the property that is seized by the Police and is in their custody. If the Police rightfully or wrongfully part with the possession of that property in favour of some person the remedy in that case is by having recourse to the; Civil Court for the enforcement of the right of the claimant and not by an application made under Section 523 or 517, Criminal P.C. No authority has been brought to my notice which covers the case of the description that is before me and therefore I will have to consider the matter on the principles indicated in the various sections of the Criminal Procedure Code in respect of, such properties which are seized by the Police.
4. There are two kinds of properties that are dealt with under the Criminal Procedure Code. Firstly those that are seized by the Police and produced before the Court during the inquiry or trial and those which are seized by the Police and not produced during the inquiry or trial. The Police are empowered to seize the properties during the course of investigation as will appear from Section 165, Cr.P.Code, and also on reference to Section 523, Cr.P.Code. A duty is cast upon the Police to prepare a list of such property and to report the fact of the seizure to a Magistrate. If the property is produced before the Court the Court is empowered to pass orders in respect of it under Section 517, Cr.P.Code, for its disposal after the conclusion of the inquiry or trial.
During the course of inquiry or trial the Court before whom the property is produced is empowered to pass such orders as it thinks lit for the proper custody of such property pending the inquiry or trial under Section 516A Criminal P.C. Thus it will appear that Sections 516A and 517 deal with the power of the Court with regard to the custody of the property during the inquiry or trial and for its disposal by delivery or otherwise after the conclusion of the trial. But if the property is, not produced before the Court but remains' with the Police then under Section 523, Cr.P.Code the power is given to the Court to make such order as it thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof or, if such person cannot be ascertained, respecting the custody or production of such property.
A procedure is indicated in Sub-Clause (2) of Section 523, Cr.P.Code for the delivery of the same where the person entitled is known, after ascertaining the claimant before passing final orders thereon. In the latter case an inquiry is contemplated. On consideration of all these provisions it is plain that after property is seized by the Police orders for its final disposal can only be passed by the Court and the Police are expected to hold the property subject to the orders of the Magistrate. Therefore if the property is with the Police the Magistrate alone has got jurisdiction to pass orders. But the difficulty in this case arises on account of the wrongful action by the Police in handing over the sum directly to the Municipality and the question is whether in view of this fact it is competent for a Magistrate to re-call the property from the person to whom it has been wrongfully handed over and to pass orders in respect of the same.
There is no provision in the Criminal Procedure Code directly bearing on the point, and the only question is whether recourse could be had to the inherent powers of Criminal Court to remedy wrongs committed during the course of proceedings before it. Such an inherent power is conceivable with' reference to subordinate Criminal Courts and the High t Court. Section 561-A, Criminal P.C. specifically declares that such a power exists in the. High Court to give effect to any order under that Code or to prevent abuse of process of any Court or otherwise to secure ends of justice.
5. In this case justice of the petitioner's case is quite clear. The Police seize the property in the course of investigation. This was, therefore, liable to be disposed of by the Magistrate under Section 523, Cr.P.C. The Police un-authorisedly handed over the property to the Municipality. The fact of the delivery to it by the Police is admitted by the counsel for the Municipality appearing before me. The person to whom this sum of Rs. 701-2-9 is made over is nobody else than the real complainant. He was given a hearing before this Court to justify the action of the Police. All that he could urge is that the petitioner be asked to file a Civil Suit against the Municipality. Accused is acquitted in this case. Since the property which is the subject matter of this petition was cash unidentifiable in its nature it could not be urged that an offence with respect to it was committed.
6. Under the circumstances both the Magistrate below as well as High Court in exercise of its inherent powers have power to re-call the amount wrongly handed over by the Police to the Municipality. They have further power to require the Police to produce the property seized by it for final disposal by the Magistrate under Section 523. They have also powers to give effect to this order. To drive the petitioner to a costly and troublesome civil action would be sheer injustice and abuse of the process of Court.
7. The result is that the reference is accepted, order of the lower Court is set aside and it is ordered that the subject matter of this petition viz. Rs. 701-2-9/- seized by the Police and made over to Sitamau Municipality shall be recalled.
8. The Police may also be directed to produce that property for final disposal under Section 523, Cr.P.C. After the property is secured by either of these methods the same be made over to the petitioner.